The
appellant Co-operative Housing Society Ltd. made some unauthorised
constructions in a 36 storeyed building.

The
Bombay Municipal Corporation issued a show cause notice calling upon the
society to show cause as to why the upper eight floors of the building should
not be demolished so as to limit the development to the permissible Floor Space
Index (F.S.I.) since the additional Floor Space Index to the extent of 2773 sq.
mts. was gained by the appellant. The appellants submitted a reply to the
show-cause notice. The Administrator of the Municipal Corporation made an order
on 21st Septmber, 1984 requiring the appellant to demolish 24,000 sq. ft. on
the eight upper floors of the building on the basis of 3000 sq. ft. on each
floor. The Administrator as well as the State Government dismissed the
representation and appeal by the appellant. So the appellant filed a writ
petition in the High Court which also dismissed with the observation that the
appellant be given a choice to reduce the construction upto permissible limit
by any alternative proposal within the four corners of the rules and
regulations within one month from 28th October 1985 the Municipality may
consider.

The
appellant made application to the Municipal Corporation giving several
alternative proposals on 21st
November 1985. But it
also preferred a special leave petition before this court against the High
Court Judgment.

The
special leave petition leave petition was dismissed on January 17, 1986. The appellants alleged that they
submitted another proposal to the Municipal Corporation on 17th February, 1986 and a meeting for hearing
alternative proposals was fixed up by the Municipal commissioner and put
forward its case in support of the new proposals and the Municipal Commissioner
said he would consider the proposals and take decision. On 27th December 1988 the appellant wrote a letter to the
Municipal Commissioner to consider the alternative proposal i.e. of 746
vertical demolition of the building instead of demolishing the eight upper
floors. In January, 1989 the officers of the corporation agreed that demolition
can be made vertically so as to bring the entire construction within the
permissible Floor Space Index where as the work of demolition of upper eight
floors of the building were entrusted to a company by the Municipal
Commissioner. So the appellant again filed a writ in the High Court. It was dismissed
by the Single Judge as well as by the Division Bench dated 5th March, 1990.

The
appellants came by Special Leave Petition in this Court; The main grievance of
the appellant being that vertical demolition proposal was not considered. Inspite
of orders of this Court in this regard to the Municipal Corporation no
agreeable solution could fructify. The proposal was examined by the Municipal
Commissioner but rejected on 13th November, 1990 and submitted the detailed report to this Court.

Dismissing
the petition the Court

HELD:
The appellant had made illegal constructions in violation of Floor Space Index
to the extent of more than 24000 sq. ft. The decision taken by the Municipal
Commissioner does not suffer from any want of jurisdiction nor is violative of
any law or rules. It is well settled that the High Court under Article 226 of
the Constitution is not an appellate Court on the administrative decision taken
by the authorities. Since the tendency of raising unlawful constructions and unauthorised
encroachments is increasing in the entire country and such activities are
required to be dealt with by firm hands. Such unlawful constructions are
against public interest and hazardous to the safety of occupiers and residents
of the multistoreyed buildings.

[749F,
750B, E-F] This case should be a pointer to all the builders that making of unauthorised
construction never pays and is against the interest of the society at large.
The rules, regulations and by laws are made by the corporations or development
authorities taking in view the larger public interest of the society and it is
the bounden duty of the citizens of obey and follow such rules which are made
for their own benefits. [750H-715B]

The
Judgment of the Court was delivered by KASLIWAL, J. This petition under Article
136 the Constitution of India is directed against the order of Bombay High
Court dated 9th March,
1990.

Facts
necessary and shorn of details are given as under. Pratibha Cooperative Housing
Society Ltd. (hereinafter referred to as `the Housing Society') made some unauthorised
constructions in a 36 storeyed building in a posh and important locality of the
city of Bombay. The Bombay Municipal Corporation
issued a showcause notice dated 7th August, 1984 calling upon the Housing Society to showcause within 7 days
as to why the upper right floors of the building should not be demolished so as
to limit the development to the permissible Floor Space Index (F.S.I.).

In the
notice it was gained by the Housing Society and that the construction work had
already reached 36 floors and that on the basis of the actual area of the
building, the upper eight floors were beyond the permissible F.S.I. limit and
as such were required to be removed. The Housing Society submitted a reply to
the showcause notice by their letter 13th August, 1984. The Administrator of the Bombay
Municipal Corporation made an order on 21st September, 1984 requiring the Housing Society to
demolish 24,000 sq. ft. on the eight upper floors of the building on the basis
of 3000 Sq. ft. on each floor. The Housing Society made a representation but
the same was dismissed by the Administrator by order dated 31st October, 1984. An appeal submitted by the Housing
Society was also dismissed by the State Government on 7th October, 1985. The Housing Society then filed a
writ petition No. 4500 of 1985 in the High Court. A Division Bench of the High
Court dismissed the writ petition on 28th October, 1985. However, the High Court while
dismissing the writ petition also observed as under:

"It
would, however, be fair and just in the circumstances of the case to give a
choice to the society to reduce the construction up to permissible limit or
whatever other method they can think of. It is of course for the society to
come 748 forward with a proposal in that behalf. We therefore direct that in
case the society comes with any such alternative proposal within the four
corners of the rules and regulations within one month from today the
Municipality may consider." The case of the Housing Society is that in
pursuance to the said order it submitted application to the Municipal
Corporation giving several alternative proposals on 21st November, 1985. It may be noted at this stage that the Housing
Society had preferred a special leave petition No. 17351 of 1985 before this
Court against the judgment of the High Court dated 28th October, 1985 and the
said special leave petition was dismissed by this Court on 17th january, 1986.
Further allegation of the Housing Society was that it submitted another
proposal to the Municipal Corporation on 17th February, 1986 and thereafter
wrote to the Municipal Council on 14th August, 1986 to consider their
alternative proposals. A similar letter was also written to the Chief Minister
of Maharashtra. On 29th August, 1986 the Municipal Commissioner fixed up a
meeting for hearing the alternative proposals of the Housing Society. It has
been alleged that in the said meeting the Housing Society had put forward its
case in support of the new proposals and the Municipal commissioner had
thereafter informed the Housing Society that he would consider the said
proposals and take decision.

However,
no decision was taken till the filing of the present special leave petition
before this Court. it has been further alleged that on 27th December, 1988 the
Housing Society wrote a letter to the Municipal Commissioner to consider the
alternative proposals mainly of vertical demolition of the building instead of
demolishing the eight upper floors. It had been alleged that a meeting took
place between the architects of the Housing Society as well as the officers of
the Municipal Corporation in January, 1989 wherein the officers of the
Corporation agreed that instead of demolishing eight upper floors, demolition
can be made vertically so as to bring the entire construction within the
permissible F.S.I. It has been further alleged that immediately thereafter the
Housing Society was informed that henceforth it should contact the Municipal
Commissioner directly and not any officers of the Corporation. It has been
further alleged that the Corporation without considering the proposals of the
Housing Society entrusted the work of demolition of the upper eight floors of
the building to a company. In these circumstances the Housing Society filed
writ petition No. 3016 of 1989 in the High Court. Learned Single Judge
dismissed the writ petition by order dated 19th December, 1989 and the appeal preferred against the
said order was dismissed by the Division Bench of the High 749 Court by order
dated 9th March, 1990.

In
view of the fact that the main grievance of the Housing Society was that its
alternative proposal of demolishing the building vertically instead of eight
upper floors was not considered on merits by the Corporation, a serious effort
was made by this Court to get the feasibility of such proposal examined by the
Corporation. Orders in this regard were passed by this Court on several
occasions but ultimately no agreeable solution could fructify. The proposal was
got examined at the highest level by the Municipal Corporation and ultimately
the Commissioner rejected the proposal on 13th November, 1990 and submitted a
detailed report in writing for the perusal of this Court.

In the
above report it has been stated that in pursuance to the order of this Court
dated 22nd October, 1990, the proposals submitted by the Housing Society on
27th October, 1990 and 29th October, 1990 in supersession of all alternative proposals,
to demolish vertically one bedroom and servant quarters on all the floors to
bring the building in tune with the F.S.I. was considered but on the grounds
stated in the report the proposal submitted by the Housing Society cannot be
approved.

In the
circumstances mentioned above on the request of learned counsel for both the
parties to decide the case on merits, we heard the arguments in detail on
23.4.1991.

Thereafter,
in order to clarify some points we directed the Chief Engineer cum Architect and
the Municipal Commissioner to remain present on the next date namely, 1.5.1991
and to keep the record of the case also ready for our perusal.

We
have heard learned counsel for the parties at great length and have thoroughly
perused the record. It may be noted that the Housing Society had made illegal
constructions in violation of F.S.I. to the extent of more than 24,000 sq. ft.
and as such an order for demolition or eight floors was passed by the
Administrator, Municipal Council as back as 21st September, 1984. The writ petition filed against the said order was
dismissed by the High Court on 28th October, 1985 and special leave petition against the said order of the High Court was
also dismissed by this Court. The High Court in its order dated 28th October, 1985 had granted an indulgence to the
Housing Society for submitting an alternative proposal within the four corners
of the rules and regulations within one month and the municipality to consider
the same. The proposal was submitted on 21st November, 1985 but in the said proposal there was
no mention of any vertical demolition of the building. The proposal with regard
to the demolition vertically of one 750 bedroom and servant quarters on all the
floors was submitted for the first time on 27th December, 1988. During the pendency of the special
leave petition before this Court, this proposal was got examined by the
Municipal corporation.

The
Municipal commissioner submitted a report on 13th November, 1990 giving detailed reasons for rejecting such proposal.
It is well settled that the High Court under Article 226 of the Constitution is
not an Appellate Court on the administrative decisions taken by the
authorities. It cannot be said that the decision taken by the Municipal
Commissioner suffers from any want of jurisdiction or is violative of any law
or rules. The proposal submitted by the Housing Society was got examined by the
architects and engineers and thereafter the order was passed by the Municipal
Commissioner. It cannot be said that the action of the Municipal Corporation is
tainted with mala fides. It was submitted by the learned counsel for the
Corporation that the Corporation has entrusted the matter for investigation by
the CBI and suitable action is being processed against the guilty officers of
the Corporation with whose connivance these illegal constructions were made by
the Housing Society.

It is
an admitted position that six floors have been completely demolished and a part
of seventh floor has also been demolished. It was pointed out by Mr. K.K. Sighvi,
learned counsel for the Corporation that the tendency of raising unlawful
constructions by the builders in violation of the rules and regulations of the
Corporation was rampant in the city of Bombay and the Municipal Corporation with its limited sources was finding it
difficult to curb such activities. We are also of the view that the tendency of
raising unlawful constructions and unauthorised encroachments is increasing in
the entire country and such activities are required to be dealt with by firm
hands.

Such
unlawful constructions are against public interest and hazardous to the safety
of occupiers and residents of multistoreyed buildings. The violation of F.S.I.
in the present case was not a minor one but was to an extent of more than 24,000
sq. ft. Such unlawful construction was made by the Housing Society in clear and
flagrant violation and disregard of F.S.I. and the order for demolition of
eight floors had attained finality right upto this Court. The order for
demolition of eight floors has been substantially carried out and we find no
justification to interfere in the order passed by the High Court as well as in
the order passed by the Municipal Commissioner dated 13th November, 1990.

In the
result we find no force in the petition and the same is dismissed with no order
as to costs. Before parting with the case we would like to observe that this
case should be a pointer to all the 751 builders that making of unauthorised
constructions never pays and is against the interest of the society at large.

The
rules, regulations and bylaws and made by the Corporations or development
authorities taking in view the larger public interest of the society and it is
the bounden duty of the Citizens to obey and follow such rules which are made
for their own benefits.